THEATTORNEYGENERAL 

OF TEXAS 

GROVER SELLERS 

AUSTIN al.'lkxAS 

Honorable John R. Shook 

Criminal District Attorney 

Bexar County 

San Antonio, Texas 

Attention: Mr. L., J. Gittlnger 

First Assistant 

Dear Sir: Opinion NO. o-6819 

Re: Adoption of special budget'under 

R.B, 240, Acts 49th Legls.; issuance of time warrants'for current expenses' of county; and lncrease In salaries of county employees 

We acknowledge receipt of your opinion request of September 11, 1945, reading In part as follows: 

. 

"The 49th Legislature of Texas, at Its regular 

session, passed S.B. No. 246, effectingcounties of 

not less than 300,000 nor more than 500,000 population, which Act under your Opinion No. O-6721, approved July 24,'1945, became effective June 2, 1945. 

"Said Legislature also passed H.B. No. 240, 

under which Act the Auditor of Bexar County became 

the Budget Officer of said County Instead of the 

County Judge. 

"Bexar County has been operating its Budget in 

compliance with the provisions~ of Article 689a, except that it has used the fiscal year from August 1 

to July 31, rather than the calendar year as its Budget year. In 1940, this office in response to a request for an opinion from The"Honorable Charles W. 

Anderson, County Judge of Bexar County, ruled that the 

fiscal year und-er the terms 'of Article 68% should 

begin on the 1st day of January and end on the 31st 

day of the following December of each succeeding 

year, The Attorney General of the State of Texas had, 

before that time, ruled that the calendar year 

should be the fiscal year and the Budget year of 

counties of a population bracket of Bexar County. In 
Han, John R. Shook, page 2 O-6819 

spite of these rulings, however, the Budgets were 

made for the fiscal year, August 3 to July 31, as 

above set out. 

"On account of the provisions of H.B. No: 

240 and the existing conditions in Bexar County,- 

a hiatus was created from the period of August 1, 

1945 to January 1, 1946,'in which period no Budget 

existed for Bexar County, the Budgetunder which 

it had been operating ending July 31, 1945. The 

matter having been presented to us, we ruled that 

it was the duty of the County Jud,ge of Bexar County 

to make an amended' or supplemental budget to the 

1944-1945 Budget, as~we doubted the authorlty'of 

the Auditor to make a Budget, except for the calendar year of 1946, and subsequent calendar year, 

under the provisions of said H&B. No. 240.. We 

also held that the ad valorem taxes for 1945 collected during the months of October, November and 

December 1945, should be held and used for the 

purpose of creating a pay-as-you-go Budget for 

1946, in accordance with the provisions of H.B. 

No. 240; a copy of the above mentioned opinion Is 

created hereto, 

"In accordance with such opinions, the County 

Judge has prepared an amended or supplemental budget In order that the duties and functions of Bexar 

County and its offfces may be carried on during said 

fnterlm period. 

"In passing on the provisions of S,B. No, 246, 

this office held that the mandatory pay Increase provided in said Bill applied only to the officers named 

in said Act and their employees, deputies and assistants. A copy of this opinion Is attached hereto for 

your consfderation. 

"Again acting upon said opinion and doubtless 

because it was felt that a great many employees of 

Bexar County, equally deserving of increases in salhad been denied such increases because of S.B. 

:?'246, the Commissioners' Court of Bexar County 

provided pay increase for all employees which were 

set up in the lnterfm budget prepared by the County 

Judge. In order to finance said pay Increases and 

other expenses of Bexar County, said Commissioners' 

Court voted to fssue Time Warrants not to exceed the 

amount of $365 ,OOO,OO, This budget substantially 

provides for Increases In salary for employees, who 
Hon. John R. Shook, page 3 O-6819 

were not included under the provisions of S.B. No. 

246, and contains, in addition, a new budget object 

which was not Included In the 1944-1945 Budget. 

"The anticipated revenue In said amended or 

supplemental budget, together with the,unexpended 

balance In the General Fund for 1944-1945, being 

Insufficient to pay the anticipated expenses of the 

County during the five month period, from August 

1945 to January 1, 1946, by $175,000.00, the Com1, 

missioners' Court voted to issue said $365,000.00 in 

Time Warrants to be issued only, If, as and when 

needed, the receipts of the sale of such Time Warrants 

being set up in the Budget as anticipated revenue. 

"Bexar County has a Special Hospital Tax, under 

the provisions of which the people of Bexar County, by 

special election, voted'to levy lOq? on the $100.00 

valuation to establish and maintain a county hospftal. 

This hospital tax Is levied inaddition to such part 

of the annual 259! constitutional General Fund levy as 

the Commissioners"Court deems necessary and the 

total of the General Fund levy and Special Hospital 

levy exceeds 25d per $100.00 valuation in the 1944- 

1945 Budget. 

"While I do not have the opinion before me, it is 

my impression that the Attorney General has previously 

held that said lOq! levy was not constitutional. 

"At least a portion of the anticipated receipts 

from the sale of the Time Warrants was set aside as 

receipts or revenues for said county hospital and was 

so set up on the Interim budget as a part of the an 

ticlpated receipts for said hospital. Another portion 

of such anticipated receipts from the issuance of 

such Time Warrants was set up as anticipated receipts 

accruing to the Jury Fund. Another portion of such 

anticipated receipts was set up on saLd Budget as 

anticipated receipts or'revenue for the City-County 

T.B. Control Board which latter expenditure was not 

Included in the 1944-1945 Budget, but which Board was 

created by Act of the 49th Legislature, known as S.B. 

No. 339. 

"At the creation of said Interim budget, this 

office verbally ad,vised'the County Judge and the 

Commissioners' Court that some sort'of measuring 

stick should be adopted in making said Budget, and 

suggested that the 1944-1945 Budget be divided by 
. 

Hon. John R. Shook, page 4 O-6819 

12 and that this amount be mltiplled by the number 

of months provided for in said interim budget ----- 

in other words that 5/l2 of the 1944-1945 Budget be 

set un in the interim budget to cover the anticipated 

expenses during the pe'rldd from August 1; 1945 to 

January I, 1946. In many instances in said Budget, 

this amount has been exceeded not only' for the 

offices named in 5. B. No, 246, but also for other 

offices and institutions not affected by S.B. No. 

246, as we construe it. 

"In the light of the foregoing, we now desire 

to ask the following questions: 

"(1) Can Time Warrants be authorized and 

issued under such circumstances before a 

debt has actually been’createti. In other 

words, is it not necessary that script be 

first issued and registered and that such 

Time Warrants be then used to retire said 

script? 

"(2) Can Time Warrants be issued' to be payable out of the General Fund for a ,hospital 

created and to be maintained out of a Special Fund Levy when the'total of the General Fund Levy and Hospital Levy exceed the 

257? levy provided by the Constitution? 

"(3) Can Time Warrants be issued, payable 

out of the General Fund proceeds of which 

Time Warrants will be transferred to the 

constitutional Jury Fund? 

"(4) Can Time Warrants be issued out of t,he 

General Fund, the revenue of which will be 

transferred to an object OP purpose not included in the 1944-1945 Budget, but whfch 

object or purpose was set up in the amended 

OP supplemental budget, such new budget purpose being created by statute passed after 

the adoption of the 1944-1945 Budget and 

before the adoption of the interim budget? 

"(5) Can the Commissioners' Court, in said 

amended OP supplemental Budget, increase the 

salaries of employees, assistants and deputies of officers not named in S.B. No. 246, 

for the'interim period from Augustl, 1945, 

to January 1, 1946, OP should the appropria- 
Hon. John R. Shook, page 5 O-6819 

tlons provided in said interim budget be 

limited to 5/l2 of the amounts set up In the 

1944-1945 Budget? 

“(6) Can the Commissioners"Court In said 

Interim budget increase the appropriations 

for the officers provided'in S.B. No. 246, 

beyond 5/l2 of the 1944-1945 Budget, plus 

15$, such 15% to be based on the~~pay roll 

of,the particular office as of March 1, 

1945, under said S. B. No. 2461 

II 

. . . . . 

We will answer your questions in the order In which 

they are asked. 

I. 

We answer the first part of your first ques!ion "No". 

We answer the second part of your first questlon Yes . 

The issuance of time warrants is governed by the Bond 

and Warrant Law of 1931. Article 2368, V.A.C.S.' That statute 

defines' time warrants as "any warrant issued by a city or county 

not payable' out of current funds". In orderto create such an 

obligation against the general fund of the county, the commis-. 

sioners' court must be expressly or im liedly authorized by statute 

to do so. Adams vs. McGill, 146 S.W. P 2d) 332, error refused; 

Bexar County vs. Mann, 138 Tex. 99, 157 S.W. (2d) 134. In the 

latter case, the'authority tb Issue bonds and allocate a portion 

of the 25g! General~Fund Tax'as a sinking fund, for the,purpose. 

of buying voting machines was authorized by Art. 2997a, S'ec. 6, 

V.A.C.S. This statute expressly provldes that the bond moneys 

are "to be used for this purpose and no other." There is not 

only no statute authorizing the issuance of bonds OP time warrants for the purpose of paying current operating expenses but 

the Bond and Warrant Law (Art. 2 68a, V.A.C.S.) and the "pay as 

YOU go " budget law (H.B. No. 240 7 contain provisions which are 

inconsistent with such a practice. This budget law does not even 

authorize 

sity” 

"emergency expenditures in case of grave public necesas does Art. 6aga-11, V.A.C.S. It expressly provides that 

the "amounts budgeted for current expenditures from the various 

'funds of the county shall not exceed the balance in said funds 

as of January lst, plus the anticipated revenue for the current 

year for which the budget is made, 

auditor". 

as estimated by the county 

If this forrrmla is followed, there can be no necessity 

for and, therefore, no implied authority for a mortgage on the 

future revenues of the county to pay current operating expenses. 

Adams-vs. McGill 146 S.W. (2d) 332, error refused; For~eman vs. 

Gooch, 184 S.W. t2d) 481, error refused, want of merit. 
Hon. John R. Shook, page 6 O-6819 

The supposed necessity for Issuing time warrants mentioned in your letter is probably predicated on your opinion 

dated June 15, 1945,'to Hon.'Edgar Garvey, 

in which you .hold that t,he "current 3% 

xar County~Auditor, 

collect s made from the 

tax'levy in October'; 1945, and collected.durlng the months of 

October,^November, and December, 

the January Budget", 

1945, have t'obe set aside'for 

,and-cannot be used'for paying obligatfonsarising under the 3.945~ budget". It is our vFew~that all taxes 

collected from the 1945 1evy"are to be considered as current 

revenue for the purpose of paying the' obligations incurredunder 

the 1945 budget. You are correct in advising the Countg'~Judge, 

Charles W'. Anderson, in your letter of July 13, 1945, that "the 

fiscal year under the terms of Art. 68% should begin on the 1st 

day of January and end on the 31st day of the following December 

of each succeeding year". This.department made that ruling in 

Its Opinion No. O-2324, which was issued onMay 20, 1940. Under 

Article 68ga-g-ii, V.A.C.S., the budget which is prepared in"' 

July.and adopted in August seems to be tied to the tax levy made 

in August for taxes which are to become due and payable on October 1st. This is made manifest by that part of Article 68ga-ii 

reading as follows: 

"When the budget has been finally approved by 

the Commissioners' Court, the budget, as approved 

by the Court shallbe filed with the Clerk of the 

County Court and taxes levied only in accordance 

therewith; and no expenditure of the funds of the 

county shall thereafter be made except In strict 

compliance with the budget as adopted by the court." 

The budget referred to here is the budget for the following calendar year. The taxes levied In August on the basis 

of the August budget are taxes which In contemplation of Article 

68ga are to be applied to the expendituresfor the following 

calendar year. This practice of levying taxesin August for use 

Ln then following calendar year worked well in practice until the 

Legislature passed Article 7255b, V.A.C.S., allowing a discount 

on ad valorem taxes paid in advance. Prior to this law,~most of 

the taxes levied in August were paid In January of the following 

year, immediately before they became delinquent on February lst, 

Article 7336, V.A.C.S. After enactment of Article 7255b, the 

bulk of taxes levied in August are paid in Oc~tober, November 

and December following; in order to take advantage of the discount. If Article 6&a, V.A.C.S, was the budget law under which 

Bexar County Is presently operating, we would be inclined to 

agree with your opinion holding that taxes collected in October; 

November and December, 1945, should be impounded for use in 1946. 

H.B'. 240, however, is now the budget law applicable to 

Bexar County and It became effective April' 9, 194.5. It expressly 

repeals "all laws and parts of laws in conflict" with it. It au- 
. 

Hon. John R. Shook, page 7 O-6819 

thorlzes the county auditor to prepare a budget in January "to 

cover all proposed expenditures of the County Government for the 

current fiscal and calendar year". This new budget law does not 

tie the budget to any particular tax levy. In this respect;it 

is in conflict with the general county,budget law (Art. 68ga, 

V.A.C.S.) and therefore repeals it. When your Commissioners' 

Court levied the taxes which became due and payable October lst, 

it was operating under H.B. 240 and,not under Art. 6’8ga, g-11, 

V.A.C.S. It is true that H.B. 240 seems to contemplate that the 

countI& Included in the Act shall start ona 'pay as you go" 

basis as of January 1, 1946, but there is nothing in the Act 

which ties the 1946 budget to the 1945 taxes' or gives any authority 

for impounding the taxes paLd between October 1 and December 31 

for use in 1946. The 1946 budget will be based on "the balances 

in said funds as of January 1, plus the anticipated revenue for 

the current year for which the budget is made, as estimated by 

the county auditor." The "anticipated revenue for the' current 

year for which the budget is made means 1946 revernze and not 

1945 revenue. ,.. 

If you will use your 1945 taxes to meet the obligations 

Incurred during the calendar year 1945, evidently sufficient 

funds to pay all obligations incurred in 1945, which are properly 

chargeable to current funds, will be available. 

II. 

We answer your second question "No". 

You are correct In saying that this office has prevlously held that the lO# hospital levy was unconstitutional. We 

held this in our Opinion No. O-2599 which was issued to Hon. E. 

G. Garveg, County Auditor of Bexar County, on September 6, 1940: 

The reason for this hol~ding was that Section 1 of Article 4437a, 

V.A.C.S. was a special or local law, the enactment of which was 

prohibited by Section 56 of Article 3 of the Texas Constitution. 

The last Legislature, however, amended Article 4437a, V.A.C.S., 

so that it now applies to "all counties in Texas having a population of 200,000 or more inhabitants as shown by the last preceding Federal Census, in which are established hospitals jointly 

owned and operated by any city and county in which said hospital 

is located. . D . *" Sec. 3 of Art. 4437a was also amended to 

read as follows: 

“Sec. 3. A direct tax of not over 204 on the 

valuation of $100.00 may be authorized and levied 

by the Commissioners' Court of such county for the 

purpose of erecting buildings or other Improvements 

and for operating and malntaining such hospital; provided that all such levy of taxes shall be submitted 
. . _ 

Hon. John R. Shook, page 8 O-6819 

to the qualified taxpaying vote& of the'countg, and 

a Mjorltg vote shall be necessary to levy the".tax. 

Suticbssive elections may be held to authoriie adaitlonal taxes hereunder proviaea the total tax Shall' 

not exceed the maximum of 209? per $100.00 valuation; 

as hereinabove provided." See 3.B; Non. 339; Ch."'295, 

Acts @tKLegls., Reg. Sess., 1945, Vernon's Texas 

Session Laws. 

According to a ce??tlficate'~'of~electfofi which 18 dii file 

in the office of the Secretary of"State,, the qualifted taxpaying,' 

voters of Bexar County at a special electlon~held,on July 25; 1945, 

authorizea the Commissioners' Court to levy the 2O#'taX o%the' 

$100.00 v&luation for construction ana maintenance'of hospitals. 

This 204 tax authorizatioil is In lieu of the 10 eta% tihich.theLegislature undertook to authorize in Articles e 437a and &437b, 

V.A.C.S. 

We have also learned from the Secretary of State that 

since the special election on July 25, 1945, you held another 

special election in Bexar County on August 25., 1945, for the purpose of reallocating the constitutional tax rates as authorized~ ' 

by Article 8, Sec. 9 of the Texas Constitution. At this election, 

the majority votes were "cast for the proposition authorlzlhg 

the Commissioners' Court of Bexar County, Texas, to reallodte 

the Etghtg Cents (80$!) constitutional maxiwm county tax upon 

the One Hundred Dollars ($100) valuation authorized by SectFon 9 

of Article 8 cf the Constitution of the State of Texas by changing 

the rate provided for county urposes from Twenty-five'cents 

(25#) to Forty-six Cents (46#p on the One Hundred Dollars($lOO) 

valuation; by authorizing for Poaas and bridges Fifteen Cents 

(15$)'on the One Hundred Dollars ($100) valuation; by changing 

the rate to pay jurors from Fifteen Cents (15#) to Five Cents 

(54) on the One Hundred Dollars ($100) valuation and by changing 

the rate for the erection of public bulldings, streets, sewers, 

water works and other permanent im rovements 

Cents (25d) to Fourteen Cents (144 P 

from Twenty-five 

on the One Hundred Dollars 

($100) valuation." 

We are advised that an order has been entered by the 

Commiss loners ' Court levying taxes according to the new rates. 

The General Fund levy is, therefore, now 46q! instead of 256 on. 

the $100 valuation. 

III. 

We answer your 3rd question "No". Carroll vs. Williams, 

109 Texas, 155, 202 S.W. 504, cited by you in your letter. 

Iv. 
. . . _ 

Hon. John R. Shook, page 9 O-6819 

We answer your 4th question "No" for the reason that 

time warrants cannot be issued under the circumstances mentioned 

in your letter. 

V. 

"Yes" 

(a) We aiiswer the first part of your 5th question 

; provided, that the salaries of employees not named in 

Senate Bill 246 shall not be Increased beyond the mt%x?.mrn 

salaries now provid@d by statute fork such positions; and provided that such salary fncreases operate from the date of'the 

order entered by the Commissioners,'-Court. If a particular 

employtie Is not covered by S.B'. 246, and he is getting the maximum salary now provided by statute for the position he holds,' 

he could not receive an increase from'the Commissioners' Court. 

If he is not being paid the maxlrmm salary provide8 for by law 

for the position he holds; he can receive an increase in salary 

Up to such maximum salary, if the Commissioners' Court enters 

'oviaec"'the Increase does not ex9 8n or&er for such Increase, pr 

teed 15% based bn the March, 1 

Before the passage of S.B. 246 

County asked us this question: 

f 

45, payroll for such position. 

the County Auditor of McLennan 

"The other question i s whether or not when a 

'county is unable to retain experienced personnel 

at the salary'schedule set up in a budget, would 

an emergency amendment to the budget be justified 

under the provisions of Art. 68%-n?" 

In our Opinion No. Q-5184, we answered the question as 

follows: 

"Whether or not the situations presented in 

godr inquiry are such as can be classified as a 

grave public necessity requiring emergency expenditureti.~urider the budget law so as to permit the 

commi.ssioners' court to amen&the budget, is a 

question of fact primarily to be passed upon by 

the commissioners' court. 

Since that opinion was issued on May 8, 1943, the Legislature has provided in S.B. 246 for a 15% pay Increase for certain county employees and authorized the budget to be amended for 

that purpose. In Sec. 13 of S.B. 246, the Legislature found that 

"the further fact that Increased living cost and taxes have 

greatly lndreased the living expenses of the employees, deputies 

ana asslstants'of the county officers named, so that said officers 

are,hairifig a1fficulty in keeping adequate staffs of trained person; 

nel, creates an emergency and, an Imperative public necessity, etd. 

If the Legislature found that an emergency eXIsted with reference 

to the employees named in the Act, we are unable to say that the 
. . . _ 

Hon. John R. Shook, page 10 Q-6819 

Commissioners' Court of Bexar County could not find that a 

similar emergency exists with reference to the courity'employees 

iiot named in the Act, so as to authorize a wage increase as to 

all county employees. 

In no event, however, can employees not named in S.B. 

246 receive an Increase in salary for any period prior to the 

adoption of an interim or supplementary budget. 

"No" . 

(b) We answer the secofid part of your 5th question 

The Commissioners' Court has authbrity 'to provide for 

emergency expenditures involved in Increased salaries if-such 

Increased expenditures can be paid out of "current funds." 

VI. 

We answer your 6th question "NO"." We have held in our 

Opinion No. O-6728 that Senate Bill 246 became effective on June 

2, 1945, and is apflbable to Bexar County. 

Section 4 of that Act provides: 

"The Commissioners' Court of each of said counties 

shall grant'an Increase in the employees' salary bdget 

and &mend said bud&t for the necessary amount for all. 

of said county offices named In Sectibns 1 and 2 &eve, 

equal to fifteen (15$) per cent increase in the salary 

of all the employees, deputies and assistants for all 

of said offices, based on the pay roll of the particular 

office as of March, 1945. The salaries of the officitils 

named in this Act shall not be Increased beyond the salaries fixed in this Act. D D . en 

bqy . 

of 

IS 

It is clear that the officers whose salaries are fixed 

3.B. 246 do not receive the 15% increase provided for in Sec. 

The Legislature flnding that all 15% increase in the salaries 

the employees of thB officers named in S.B. 246 Is necessary 

In effject a finding that a 15% Increase is sufficient. We do 

not believe the Commlssloners ' Court would be authorized to increase the salaries of employees more than 15$, based on the 

March 1945 pay roll, and we can see nd reason for adopting a buclget for a particular office beyond that'necessary to pay the 1,ncrease in salaries provided for "in Senate Bill No. 246. We are 

not prepared to say, however, that the Commissioners' Court is 

bound, in preparing an interim budget, by the buaget which ended 

July 31, 1945. There is actually no specific statute covering 

your particular situation. H.B. No. 240 became effective on 

April 9, 1945, but its~ provislons with reference,to preparing a 

budget seem to be operative only aft&r January 1, 1946. It however repeals "all laws and parts of laws in conflict" with it. 
Hon. John R. Shook, page 11 Q-6819 

Articles 68ga-g to 11, V.A.C.S., are in conflict with H.B, 240, 

Insofar-as they &uth&lze the Countg Judge, Instead of the County 

Auditor, to prepare a budget for Bexar County. 

It is primarily the responsibility of the Commissioners' 

Court to adopt a budget. If the county,auditor prepares the 

interim budget the Commissloners"Court, under H.B. 240, cati 

make 'lsuch changes ib the luaget as in Its judgment the facts' 

ana the law warrant and the interest of the taxpayers demand", 

so long as the current expenditures do not exceed the current 

revenues'as defined in that law. If, however, the county juage 

had prepared and the Commissioners t Court haa aao'ptea si budget 

under Art. 6aga-9 to 11, V.A.C.S.,~ for the calendar year 1945, 

we believe that it could now be amended by the Commissioners' 

Court. S.B. No. 246 expressly provides in Section 4, copied on 

page 11 above, that the budget shall be amended to provide for 

the 15% salary increase'.' So, regardless of who the Commlssiofiers' 

Court designates to prepare the Interim budget, we'believe that 

the amended or suPplementa budget previtiusly prebared, should be 

revised in accbrdance with this opinion and that an interim budget should be adopted as soon as possible. 

Trusting that we have satisfactorily answered your 

questions, we are 

Very ~truly yours, 

FD:rt:wc 

ATTORNEY GENERAL OF TEXAS 

By s/Fag&n Dickson 

Fagan Dickson 

Assistant 

APPROVBD OCT 2, 1945 

s/Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/JAB Chairman